Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review, Partial Rescission of Review, and Notice of Revocation of Order in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 15, 2010, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India. This review covers 159 producers/exporters of the subject merchandise to the United States. The period of review (POR) is February 1, 2008, through January 31, 2009.

After analyzing the comments received, we have made no changes in the margin calculations. Therefore, these final results do not differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”

Finally, we have determined to revoke the antidumping duty order with respect to shrimp from India produced and exported by Devi Sea Foods Limited (Devi) and to rescind the review with respect to 41 firms.

DATES:

Effective Date: July 19, 2010.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Eastwood or Henry Almond, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-3874 or (202) 482-0049, respectively.

SUPPLEMENTARY INFORMATION:

Background

This review covers 159 producers/exporters. The respondents which the Department selected for individual examination are Devi, Falcon Marine Exports Limited (Falcon), and the Liberty Group. The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice.

On March 15, 2010, the Department published in the Federal Register the preliminary results of administrative review of the antidumping duty order on shrimp from India. See Certain Frozen Warmwater Shrimp from India: Preliminary Results of Antidumping Duty Administrative Review, Partial Rescission of Review, Notice of Intent to Rescind Review in Part, and Notice of Intent to Revoke Order in Part, 75 FR 12175 (Mar. 15, 2010) (Preliminary Results).

We invited parties to comment on the Preliminary Results of review. In April 2009, we received case and rebuttal briefs from the Ad Hoc Shrimp Trade Action Committee (the Petitioner) and the American Shrimp Processors Association (ASPA)/the Louisiana Shrimp Association (LSA). We also received a case brief from the Liberty Group and a rebuttal brief from Devi.

The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

Scope of the Order

The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, deveined or not deveined, cooked or raw, or otherwise processed in frozen form.

The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.

The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).

Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.

Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); (5) dried shrimp and prawns; (6) canned warmwater shrimp and prawns (HTSUS subheading 1605.20.10.40); (7) certain dusted shrimp; and (8) certain battered shrimp. Dusted shrimp is a shrimp-based product: (1) That is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; (3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; (4) with the non-shrimp content of the end product constituting between four and ten percent of the product's total weight after being dusted, but prior to being frozen; and (5) that is subjected to IQF freezing immediately after application of the dusting layer. Battered shrimp is a shrimp-based product that, when dusted in accordance with the definition of dusting above, is coated with a wet viscous layer containing egg and/or milk, and par-fried.

The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.

Period of Review

The POR is February 1, 2008, through January 31, 2009.

Partial Rescission

In the Preliminary Results, we stated our intention to rescind the review with respect to the following companies, which reported to the Department that they had no shipments during the POR:

(1) Abad Fisheries

(2) Allanna Frozen Foods Pvt. Ltd.

(3) Allansons Ltd.

(4) Amulya Sea Foods

(5) Anjaneya Seafoods

(6) Baby Marine (Eastern) Exports

(7) Baby Marine Exports

(8) Baby Marine International

(9) Baby Marine Products

(10) Baby Marine Sarass

(11) Baraka Overseas Traders

(12) Blue Water Foods & Exports P. Ltd.

(13) BMR Exports

(14) Coreline Exports

(15) Frigerio Conserva Allana Ltd.

(16) G A Randerian Ltd.

(17) G.K S Business Associates Pvt. Ltd.

(18) Hiravata Ice & Cold Storage

(19) Hiravati Exports Pvt. Ltd.

(20) Hiravati International Pvt. Ltd. (located at Jawar Naka, Porbandar, Gujarat, 360 575, India)

(21) Indian Aquatic Products

(22) Innovative Foods Limited

(23) Interseas

(24) K R M Marine Exports Ltd.

(25) K V Marine Exports

(26) Kalyanee Marine

(27) L. G Seafoods

(28) Lewis Natural Foods Ltd.

(29) Libran Cold Storages (P) Ltd.

(30) Lourde Exports

(31) Sanchita Marine Products P Ltd

(32) Silver Seafood

(33) Sterling Foods

(34) Veejay Impex

(35) Veraval Marines & Chemicals P Ltd

Further, we stated our intention to rescind the review for the following firms because we initiated multiple reviews for these companies: (1) Devi Fisheries Limited; (2) Premier Marine Products; (3) Ram's Assorted Cold Storage Ltd.; (4) Satya Sea Foods Pvt. Limited; and (5) Usha Sea Foods. We stated our intention to rescind the review for Calcutta Seafoods because this company no longer exists and is now doing business as Calcutta Seafoods Pvt. Ltd.

Since the Preliminary Results we have received no comments regarding our stated intention to rescind the review for each of the firms listed above. Therefore, the Department is rescinding this review with respect to the 41 firms listed above.

Duty Absorption

In our Preliminary Results, we preliminarily found that there was no duty absorption applicable to Devi's U.S. sales because we preliminarily determined that there is no dumping margin with respect to Devi's U.S. sales during the current administrative review. See Preliminary Results, 75 FR at 12179-12180. Because we continue to find that there is no dumping margin with respect to Devi's U.S. sales during this POR, we also continue to find that there is no duty absorption applicable to Devi's U.S. sales.

Determination To Revoke Order, in Part

The Department may revoke, in whole or in part, an antidumping duty order upon completion of a review under section 751 of the Act. While Congress has not specified the procedures that the Department must follow in revoking an order, the Department has developed a procedure for revocation that is described in 19 CFR 351.222. This regulation requires, inter alia, that a company requesting revocation must submit the following: (1) A certification that the company has sold the subject merchandise at not less than normal value (NV) in the current review period and that the company will not sell subject merchandise at less than NV in the future; (2) a certification that the company sold commercial quantities of the subject merchandise to the United States in each of the three years forming the basis of the request; and (3) an agreement to immediate reinstatement of the order if the Department concludes that the company, subsequent to the revocation, sold subject merchandise at less than NV. See 19 CFR 351.222(e)(1). Upon receipt of such a request to revoke an order in part, the Department will consider: (1) Whether the company in question has sold subject merchandise at not less than NV for a period of at least three consecutive years; (2) whether the company has agreed in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Department concludes that the company, subsequent to the revocation, sold the subject merchandise at less than NV; and (3) whether the continued application of the antidumping duty order is otherwise necessary to offset dumping. See 19 CFR 351.222(b)(2)(i). See also Sebacic Acid From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Determination To Revoke Order in Part, 67 FR 69719, 69720 (Nov. 19, 2002).

We have determined that the request from Devi meet all of the criteria for revocation under 19 CFR 351.222. With regard to the criteria of subsection 19 CFR 351.222(b)(2), our final margin calculations show that Devi sold shrimp at not less than NV during the current review period. In addition, Devi sold shrimp at not less than NV in the two previous administrative reviews (i.e., Devi's dumping margins were zero or de minimis). See Certain Frozen Warmwater Shrimp From India: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 FR 33409, 33411 (July 13, 2009) and Certain Frozen Warmwater Shrimp From India: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 73 FR 40492, 40495 (July 15, 2008). Also, we find that application of the antidumping duty order to Devi is no longer warranted because: (1) Devi has agreed to immediate reinstatement of the order if the Department finds that it has resumed making sales at less than NV; and (2) the continued application of the order is not otherwise necessary to offset dumping. Therefore, we find that Devi qualifies for revocation of the antidumping duty order on shrimp from India under 19 CFR 351.222(b)(2). Accordingly, we are revoking the order with respect to subject merchandise produced and exported by Devi. For further discussion, see the Issues and Decision Memorandum (Decision Memo) accompanying this notice at Comment 3.

Effective Date of Revocation

This revocation applies to all entries of subject merchandise that are produced and exported by Devi, and are entered, or withdrawn from warehouse, for consumption on or after February 1, 2009. The Department will order the suspension of liquidation lifted for all such entries and will instruct U.S. Customer and Border Protection (CBP) to release any cash deposits or bonds. The Department will further instruct CBP to refund with interest any cash deposits on entries made on or after February 1, 2009.

Cost of Production

As discussed in the Preliminary Results, we conducted an investigation to determine whether Devi, Falcon, and the Liberty Group made third country sales of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b) of the Act. See Preliminary Results, 75 FR at 12182-12183. For these final results, we performed the cost test following the same methodology as in the Preliminary Results.

We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. See sections 773(b)(1)-(2) of the Act.

Therefore, for purposes of these final results, we continue to find that Devi, Falcon, and the Liberty Group made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining NV pursuant to section 773(b)(1) of the Act. For those U.S. sales of subject merchandise for which there were no third country sales in the ordinary course of trade, we compared constructed export prices or export prices, as appropriate, to constructed value in accordance with section 773(a)(4) of the Act.

Analysis of Comments Received

All issues raised in the case briefs by parties to this administrative review, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room 1117, of the main Department building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn/. The paper copy and electronic version of the Decision Memo are identical in content.

Changes Since the Preliminary Results

Based on our analysis of the comments received, we have made no changes in the margin calculations.

Final Results of Review

We determine that the following weighted-average margin percentages exist for the period February 1, 2008, through January 31, 2009:

Review-Specific Average Rate Applicable to the Following Companies:

Assessment

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

Pursuant to 19 CFR 351.212(b)(1), because Devi, Falcon, and the Liberty Group reported the entered value for all of their U.S. sales, we have calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the sales which entered value was reported. To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we have calculated importer-specific ad valorem ratios based on the entered value.

For the companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on adverse facts available.

Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

Because we have revoked the order with respect to subject merchandise produced and exported by Devi, we will instruct CBP to terminate the suspension of liquidation for imports of such merchandise entered, or withdrawn from warehouse, for consumption on or after February 1, 2009, and to refund all cash deposits collected.

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate established in the less-than-fair-value (LTFV) investigation if there is no rate for the intermediate company(ies) involved in the transaction.

Cash Deposit Requirements

Further, the following deposit requirements will be effective for all shipments of shrimp from India (except shipments from Devi, as noted above) entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: 1) the cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent, de minimis within the meaning of 19 CFR 351.106(c)(1), the cash deposit will be zero; 2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in this review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be 10.17 percent, the all-others rate established in the LTFV investigation. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from India, 70 FR 5147, 5148 (Feb. 1, 2005). These deposit requirements shall remain in effect until further notice.

Notification to Importers

This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Appendix—Issues in Decision Memorandum

General Issues

1. Offsetting of Negative Margins

2. Using U.S. Customs and Border Protection (CBP) Data for Respondent Selection

Company-Specific Issues

3. Revocation of Devi Sea Foods Ltd. (Devi)

4. Calculation of the U.S. Indirect Selling Expense Ratio for Devi Sea Foods Inc. (Devi USA)

5. Treatment of Quality Claim for the Liberty Group

6. Calculation of Devi's General and Administrative (G&A) Expense Ratio

7. Calculation of Devi's Financial Expense Ratio